Marine and Coastal Access Bill Special Edition

Jason Lowther • Simon Payne

Published online: 20 November 2009

� Springer Science+Business Media B.V. 2009

Professor Paul Todd has written the editorial providing an overview of the contents

of this Special Edition and the Marine Bill Symposium which was run at the

University of Plymouth in January 2009. This piece seeks to take a broad overview

of the themes of the Marine and Coastal Access Bill and to provide some general

commentary on what it is likely to achieve and some of the missed opportunities.

We are writing this in early September 2009. At this time the Bill is before the

House of Commons having completed its Committee stage and will now proceed

through the Report stage to its Third Reading in October. All being well it will then

proceed to Royal Assent—and for the first time the UK will have a coherent and

broad based piece of legislation which attempts to take a sustainability lead and

integrated approach to managing the marine environment. Of course there are

shortcomings—both in detail and philosophy—but before considering these it is

worth acknowledging the progress that this Bill will deliver on a part of the

environment, which has been neglected in terms of legislation, and has suffered

from significant over exploitation and degradation.

Philosophically the Bill is not radical in its approach—although arguably the state

of the seas would justify a more radical approach. Anyone reading the Bill will find a

familiar regulatory pattern: A new regulator with a range of powers and duties (but

ultimately overseen by Ministers), the regulator having the central role in carrying out

functions of marine management (e.g. in areas of conservation, licensing, fisheries

etc.) and having a tool box of enforcement tools and operating within a framework of

marine planning. Nothing wrong with this, but certainly nothing radical. Experience

in the terrestrial environment over many years suggests that this regulator centred

approach can deliver environmental improvements but does demand appropriate

J. Lowther (&) � S. Payne

Plymouth Law School, University of Plymouth, Drakes Circus, Plymouth PL4 8AA, UK

e-mail: jason.lowther@plymouth.ac.uk

S. Payne

e-mail: simon.payne@plymouth.ac.uk

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Liverpool Law Rev (2009) 30:97–99

DOI 10.1007/s10991-009-9056-y

resourcing for the regulator—and political will from the regulator to deliver real

environmental improvement. There are maybe two key reasons why a more radical

approach to regulation would have been valuable in the Marine and Coastal Access

Bill. First, the marine environment is not the same as the terrestrial environment in

that the challenges of monitoring and enforcement are dramatically greater. This is

partly because of the vast area involved—750,000 km2—but mainly because its

almost impossible to ‘police’ beyond the coastal fringes. Secondly, in the terrestrial

environment we have substantial ownership rights and environmental regulation has

always been supplemented by the role of the common law. Actions for trespass and

nuisance for example have proved a powerful tool. So has the role of judicial review

where those affected by regulator decisions (e.g. local residents) have kept regulators

‘on their toes’. There are different considerations in the marine environment and

maybe these might have justified a different approach. For example a role could have

been given to environmental Non Governmental Organisations with interests and

expertise in the marine environment to have legal standing to challenge regulators,

take enforcement action etc. This would have been radical and no doubt resisted by

significant interest groups in fisheries or mineral exploitation—but if the correct

interpretation of the evidence is our seas are in crisis then this might have been a better

approach.

The Bill has a refreshing range of clauses which refer to sustainable development

and the environment. It has also a range of clauses which require or permit the

balancing of economic and social interests. Guidance from Ministers which

supplement this need to resolve these conflicting interests. While it has to be

accepted that these conflicts exist some hierarchy of approach particularly in

relation to marine protected areas—to be called Marine Conservation Zones would

have been welcome. In relation to these Zones for environmental lawyers with an

interest in protecting the marine environment these provisions are likely to be seen

as the most exciting in the Bill. But there are some problems with the proposals.

Various NGOs have campaigned for a two tier system of marine reserves—with an

additional category of highly protected reserves. There has been much concern

about the commitment to actually turn a power to designate marine conservation

zones into a coherent and substantial network of zones. The history of marine

protected areas in UK law has been far from encouraging—marine nature reserves

really never amounted to anything much at all under the Wildlife and Countryside

Act 1981 and the UK has been very slow to acknowledge its responsibilities to

designate Habitats Directive European marine sites. So some cynicism about these

new powers is probably justified. There has been discussion about whether there

should be a clear target in law or policy that x% of our seas should be designated. A

target of 30% no take reserves was suggested by the Royal Commission on

Environmental Pollution in 2004. The French President has recently committed to a

target led approach to marine protected areas in French waters.

There is much to welcome in the Bill’s provisions but also much to be concerned

about and some missed opportunities. Limiting the impact of the Bill principally to

waters around the UK and leaving out the several million square kilometres of seas

and oceans around the UK’s overseas territories is one example. In UK waters

because of the emphasis on the powers of the new Marine Management

98 J. Lowther, S. Payne

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Organisation it’s the resourcing, policy framework and politics of this organisation

that will be the key to watch as Marine and Coastal Access Bill moves, hopefully,

into law and into implementation.

Marine and Coastal Access Bill Special Edition 99

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